In this Justitia communication, we continue our round-up of recent cases, so as to share noteworthy developments, or indeed cautionary tales, designed to help your organisation navigate staffing matters.
The first case examines a recent unfair dismissal case, where an employer directed its employee to take a drug and alcohol test. The employer terminated the employee’s employment for refusing to comply. The Fair Work Commission (Commission) found that the termination was harsh, unjust and unreasonable.
The employee joined her colleagues for a long lunch. Following the lunch, one colleague who attended the lunch appeared a bit disruptive. Consequently, the employer requested the employee and her colleagues take a drug and alcohol test. The reason for the test was not communicated clearly to the employee. The employer provided various reasons such as a random test, and also a test under suspicion. The employee refused to take the test. The employer subsequently suspended the employee and then ultimately summarily terminated her employment for serious misconduct.
The Commission found that:
- The employer’s direction for the employee to take the test was not lawful or reasonable.
- The employer’s decision to dismiss the employee was not sound, defensible or well founded.
The Commission awarded the employee the maximum amount allowed, being 6 months’ pay.
Key takeaways:
- Employers should check the content of their Drug and Alcohol policies. In particular, policies should outline:
- In what circumstances employees will be required to undergo tests.
- The consequences for employees refusing to undergo the requisite tests.
- The consequences for employees for receiving a positive test result.
- Employers should provide clear and valid reasons for requiring employees to undergo drug and alcohol tests – in accordance with their written policies.
- Employers should provide employees with transparent reasons for termination of their employment.
- Employers should ensure that their directions to employees are lawful and reasonable – especially in circumstances where they may seek to rely on non-compliance with the direction as a ground for termination of employment.
Case: Ms Chantelle Tamati v MQT Pty Ltd
The second case examines the limits of legal professional privilege in workplace investigations. The Commission ordered production of an external investigation report and confirmed that involving lawyers did not automatically attract privilege. In a significant decision for employers conducting workplace investigations, the Commission ordered the employer to provide an external investigation report to a dismissed employee during unfair dismissal proceedings, despite the investigation being commissioned through lawyers and conducted by a barrister.
In this case, detailed disclosure about information contained in the report to employees waived privilege. What proved fatal to the employer was the absence of direct evidence from a decision-maker about the purpose—the employer’s own communications to the employee’s union stated they had engaged an external investigator to “finalise the investigation on our behalf”, which the Commission considered indicative that the disciplinary purpose was the dominant purpose of the employer’s decision to engage a barrister to conduct the investigation.
The Commission found that even if privilege over the investigation report had existed, the employer waived it by disclosing the evidentiary basis for the investigator’s findings in the outcome. The outcome letter outlined the evidence relied upon, and the reasoning behind the findings, referring to particular statements made during the investigation.
The Commission distinguished this case from others where privilege wasn’t waived, noting that here the detailed disclosures in the outcome letter happened after the employer had already decided to issue a warning and impose a performance improvement plan. The Commission found that one of the employer’s reasons for sharing the evidentiary basis for the findings was to explain to the employee the basis upon which the employee was being placed on a PIP. That is, it wasn’t disclosure for the purpose of giving the employee an opportunity to respond to the findings (and any proposed disciplinary action that the employer was considering imposing), which would have attracted privilege.
Key takeaways:
- The employer must be clear about why it is conducting an investigation and whether the purpose is solely to provide legal advice.
- Limit outcome letters to essential information only, by stating which allegations are substantiated without detailing the evidence or reasoning in support of any findings made.